No. 94-2048
In the Supreme Court of the United States
OCTOBER TERM, 1995
KAYNO M. REED, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CETIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED SERVICES
BRIEF FOR THE UNITED STATES IN OPPOSITION
D.H. MYERS
Commander, JAGC, U.S. Navy
ANDREW J. WAGHORN
Lieutenant, JAGC, U.S. Naval Reserve
Appellate Government Counsel
Appellate Government Division,
NAMARA
Washington, D.C. 20374-1111
DREW S. DAYS, III
Solicitor General
Department of Justice
Washington, D.C. 20530
(202)514-2217
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QUESTION PRESENTED
Whether petitioner's rights under the Due Process
Clause of the Fifth Amendment were violated by the
fact that the investigation that resulted in petition-
er's court-martial for raping a female sailor lasted 20
months.
(I)
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TABLE OF CONTENTS
Page
Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 7
Conclusion . . . . 14
TABLE OF AUTHORITIES
Cases:
Hoo v. United States, 484 U.S. 1035 (1988) . . . . 8
Howell v. Baker, 904 F.2d 889 (4th Cir.), cert. denied,
498 U.S. 1016 (1990) . . . . 8
Perez v. Sullivan, 793 F.2d 249 (10th Cir.) cert. denied,
479 U.S. 936 (1986) . . . . 7
United States v. Amuny, 767 F.2d 1113 (5th Cir. 1985.). . . .7-8
United States v. Byrd, 31 F.3d 1329 (5th Cir. 1994),
cert. denied, 115 S.Ct. 1432 (1995) . . . . 7
United States v. Comosona, 614 F.2d 695 (l0th Cir.
1980) . . . . 8
United States v. Crouch, 51 F.3d 480 (5th Cir. 1995) . . . . 8
United States v. Ewell, 383 U.S. 116 (1966) . . . . 11
United States v. Gouveia, 467 U.S. 180 (1984) . . . . 13
United States v. King, 593 F.2d 269 (7th Cir. 1979) . . . . 8
United States v. Lovasco, 431 U.S. 783 (1977) . . . . 5, 6, 10, 11, 12, 13
United States v. Marion, 404 U.S. 307 (1971) . . . . 5, 6, 10, 11
United States v. Reeves, 34 M.J. 1261 (N.-M. C.M.R.
1992) . . . . 10
United States v. Swacker, 628 F.2d 1250 (9th Cir.
1980) . . . . 8
United States v. Valentine, 783 F.2d 1413 (9th Cir.
1986) . . . . 8
(III)
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IV
Constitution and statute:
Page
U.S. Const.:
Amend V (Due Process Clause) . . . . 2, 4, 6, 11
Uniform Code of Military Justice, Art. 32, 10 U.S. 832 . . . . 4
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In the Supreme Court of the United States
OCTOBER TERM, 1995
No. 94-2048
KAYNO M. REED, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED SERVICES
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the Court of Appeals for the Armed
Forces (Pet. App. 1a-10a) is reported at 41 M.J. 449.
The opinion of the Navy-Marine Corps Court of Mili-
tary Review 1. (Pet. App. 27a-49a) is unreported. The
General Court-Martial ruling on the defense motion
to dismiss (Pet. App. 50a-55a) is also unreported.
JURISDICTION
The judgment of the Court of Appeals for the
Armed Forces was entered on March 22, 1995. The
petition for a writ of certiorari was filed on June 14,
___________________(footnotes)
1 Now the Navy-Marine Corps Court of Criminal Appeals.
(1)
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2
1995. The jurisdiction of this Court is invoked under
28 U.S.C. 1259(3).
STATEMENT
Petitioner is charged, at a general court-martial,
with raping a female student. The military judge
granted petitioner's motion to dismiss, finding a pre-
accusation delay in violation of the Due Process
Clause of the Fifth Amendment. The Court of Mili-
tary Review reversed, ordering the charges rein-
stated. The court of appeals affirmed. Pet. App. 2a.
1. In November 1991, a group of sailors, including
petitioner, were undergoing apprenticeship training
at the Naval Training Center (NTC) in Orlando, Flor-
ida. They attended a weekend party at a civilian hotel.
At the party Seaman X was raped twice after she had
passed out in a hotel room. Seaman X did not immedi-
ately report the crime to anyone in authority.
Rather, in January 1992, she informed her husband of
the incident after the couple watched a movie in which
a woman was raped. Her husband, also on active duty
in the Armed Forces, reported the offense to his com-
mand chaplain who, in turn, contacted the Naval
Criminal Investigative Service (NCIS) in San Diego.
Pet. App. 2a-3a.
On March 13, 1992, the NCIS requested information
from naval authorities in Orlando relating to Seaman
X's allegations. At that time, Seaman X could iden-
tify her attacker only as a black male named "Reed"
who had been in a Navy school in Orlando at the time
of the incident. Pet. App. 3a, 29a. The NCIS accord-
ingly requested rosters from NTC of those students
who had attended apprenticeship training during the
same period as Seaman X. On March 31, 1992, NCIS
received the rosters. On April 27, 1992, after review-
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3
ing the rosters, Seaman X identified "Kayno Reed"
(petitioner) as her attacker, and also informed NCIS
of the names of five additional witnesses. NCIS
thereupon sent inquiries to six locations, including
one to Mayport, Florida, that requested petitioner's
photograph and fingerprints. Shortly thereafter,
NCIS learned that petitioner and one of the witnesses
whom Seaman X had identified, Fireman Apprentice
McElroy, had already deployed with their ships. Pet.
App. 3a, 29a-30a.
NCIS San Diego then directed its field offices to
interview the five witnesses identified by Seaman X.
Those witnesses had undertaken different duty
assignments around the United States; in addition,
one had left the Navy, and another had been absent
without authorization for almost five months. During
the next three and one-half months, NCIS inter-
viewed each of the five witnesses. NCIS San Diego
received the last report of the five interviews on
August 10, 1992. Pet. App. 3a, 30a-34a.
On August 24, 1992, NCIS received petitioner's
photographs and fingerprints. On October 28, 1992,
shortly after Seaman X had returned from a naval
deployment, she participated in a photographic lineup
arranged by NCIS, and identified petitioner as her
attacker. Pet. App. 34a. Two days later, NCIS San
Diego directed agents in Mayport, Florida, to attempt
to interrogate petitioner. On November 19, 1992,
NCIS agents in Mayport advised petitioner of his
right to remain silent and requested an interview, but
petitioner invoked his right to remain silent. On
December 8, 1992, NCIS completed its investigation
and forwarded a copy of its report to petitioner's
commanding officer. Pet. App. 3a, 34a-35a.
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on January 13, 1993, petitioner's commanding
officer requested a follow-up interview of McElroy to
determine if he could identify other individuals in the
hotel room on the night of the alleged rape. On May 6,
1993, NCIS interviewed McElroy by telephone, but he
was unable to provide additional information. Pet.
App. 4a.
On September 4, 1993, petitioner was informed that
he was being involuntarily extended on active duty,
pending resolution of the investigation. On Septem-
ber 24, 1993, the rape charges and specifications were
preferred against petitioner. On October 5, 1993, peti-
tioner's commanding officer, a summary court-mar-
tial convening authority, received the charges. On
October 8, 1993, an investigation under Article 32 of
the Uniform Code of Military Justice, 10 U.S.C. 832,
was conducted to determine if there were reasonable
grounds to proceed to trial On October 21, 1993, the
Article 32 investigation was completed, and the
investigating officer recommended trial by general
court-martial. On November 23, 1993, petitioner's
command forwarded the case to the general court-
martial convening authority (GCMCA). On January
7, 1994, the GCMCA'S staff judge advocate completed
his review, concurring in the recommendation to
refer charges to a general court-martial. On January
10, 1994, the charges were referred to a general court-
martial. Pet. App. 4a, 35a-36a.
2. At trial, petitioner claimed that the delay in
bringing the charges against him had denied him his
right to due process under the Fifth Amendment. The
military judge agreed and dismissed the charges. He
noted that 20 months had passed between NCIS's
having learned of Seaman X's allegations in January
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5
1992 and its preferral of the charges in September
1993. That delay, the judge held, denied the defense
the opportunity to question witnesses "at a time
when their memory would be fresh," resulting in
actual prejudice to petitioner. Pet. App. 50a-51a. The
judge found that petitioner had suffered prejudice
because, beginning in September 1993, he had been
forbidden to return to civilian life. Id. at 51a-52a.
While acknowledging the government's limited re-
sources, its right to perfect its ease before preferral
of charges, and the need to accommodate the investi-
gation to other naval interests, the judge found that
the 20-month delay was unjustified, given that the
investigation had "quickly narrowed to one suspect."
Id. at 54a.
3. The Navy-Marine Corps Court of Military Re-
view (the Navy Court of Review) reversed. Pet. App.
27a-49a. The military judge, it held, had misapplied
United States v. Marion, 404 U.S. 307 (1971), and
United States v. Lovasco, 431 U.S. 783 (1977), which
require a defendant claiming pre-indictment delay to
establish both actual prejudice resulting from the
delay and intentional tactical delay by the govern-
ment. The court found no actual prejudice. It noted
that the military judge's concern about witnesses'
fading memories had been based solely on witness
McElroy's statement that he could no longer remem-
ber the identity of persons who had entered the hotel
room with petitioner the night of the alleged rape.
Reliance on that fact was misplaced, the court held,
because petitioner had neither asserted that he was
unaware of the identity of any such persons, or that
any such person could provide information helpful to
petitioner's defense. Pet. App. 43a-45a. Moreover,
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like the defense, the government had been unable to
interview witnesses until many months after the date
of the alleged incident. Finally, the fact that peti-
tioner had been held on active duty since charges had
been preferred against him was irrelevant to the
prejudice inquiry, because it did not relate to "the
accused's ability to present a defense to the charges
against him." Id. at 45a. The court also found the 20-
month period between notice of the offense and
preferral of charges justified, noting the magnitude of
NCIS's efforts to conduct a thorough investigation
and the fact that potential witnesses were "literally,
spread around the world." Id. at 46a. Thus, the delay
resulted from legitimate investigative reasons, and
was not "undertaken to gain a tactical advantage over
the accused." Id. at 47a.
4. The United States Court of Appeals for the
Armed Forces affirmed. Pet. App. la-10a. The "pri-
mary guarantee'' against pre-accusation delay, it
noted, is the statute of limitations governing the of-
fense. Id. at 5a (quoting Marion, 404 U.S. at 322).
Like the Navy Court of Review, the court held that a
pre-accusation delay violates the Due Process Clause
only when the delay produces actual prejudice, and
when the prosecution has acted in "reckless dis-
regard" of an "appreciable risk that delay would im-
pair the ability to mount an effective defense." Id. at
6a (quoting Lovasco, 431 U.S. at 795 n.17). The court
held that petitioner had shown neither egregious or
intentional tactical delay, nor actual prejudice. The
investigation had been delayed because it encountered
difficulties "coordinating the location of witnesses
throughout the world;' the court noted, and the preju-
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7
dice to petitioner was minimal and "did not involve
lost witnesses or physical evidence." Pet. App. 8a. 2.
ARGUMENT
Petitioner claims (Pet. 8) that the court of appeals
and the Navy Court of Review below utilized an
incorrect standard to evaluate his claim of unconsti-
tutional pre-accusation delay. Petitioner also claims
(Pet. 6-9) that this Court should grant the petition for
a writ of certiorari in order to resolve a split among
the federal and state courts of appeals as to the cor-
rect standard to apply to such claims. While peti-
tioner is correct that a circuit split exists on that
question, this case is an unsuitable vehicle for resolv-
ing that conflict. Moreover, the standard applied by
the court of appeals was correct in light of this
Court's precedents.
1. As the court of appeals noted (Pet. App. 7a &
n.1), most federal courts have held that a defendant
claiming pre-indictment delay must establish both
that the delay caused the defendant actual prejudice
and that the delay was the product of intentional
governmental attempt to gain a tactical advantage
over the defense. See, e.g., United States v. Byrd, 31
F.3d 1329, 1339 (5th Cir. 1994), cert. denied, 115 S. Ct.
1432 (1995); Perez v. Sullivan, 793 F.2d 249, 259 (l0th
Cir.), cert. denied, 479 U.S. 936 (1986); United States
___________________(footnotes)
2 Chief Judge Sullivan dissented, arguing that the majority
and the court of military review had failed to review the
military judge's ruling under an abuse-of-discretion standard.
Pet. App. 9a (Sullivan, C.J., dissenting). He stated, without
elaboration, that the record did supply "some evidence of legally
cognizable prejudice and 'egregious or intentional' government
conduct." Id. at 10a (Sullivan, C.J., dissenting).
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8
v. Amuny, 767 F.2d 1113, 1119 (5th Cir. 1985); United
States v. Swacker, 628 F.2d 1250, 1254 (9th Cir. 1980);
United States v. Comosona, 614 F.2d 695, 696 (lOth
Cir. 1980). As petitioner notes (Pet. 7), however,
several courts of appeals have held that, upon a
showing by the defense of actual prejudice, the burden
shifts to the government to demonstrate legitimate
reasons for the delay. Those courts have typically
further held that the reasons for the delay must
outweigh the prejudice to the defendant, See, e.g.,
Howell v. Barker, 904 F.2d 889, 895 (4th Cir.), cert.
denied, 498 U.S. 1016 (1990); United States v. King,
593 F.2d 269, 272 (7th Cir. 1979); United States v.
Valentine, 783 F.2d 1413, 1416-1417 (9th Cir. 1986).
See also Hoo v. United States, 484 U.S. 1035 (1988)
(White, J., dissenting from the denial of certiorari)
(noting circuit conflict). 3. Petitioner urges (Pet. 8-9)
that the court of appeals erred in applying the former,
not the latter, standard in this case, and that the
government. should have been required to establish
legitimate reasons for waiting 20 months after Sea-
man X's allegations to charge petitioner with the
rape. This ease is an ill-suited one in which to resolve the
circuit conflict identified by petitioner, for two
___________________(footnotes)
3 In United States v. Crouch, 51 F.3d 480 (5th Cir. 1995), a
panel concluded that Fifth Circuit precedents required the
application of the balancing test described in text. Judge
Garwood dissented from that holding, arguing that Fifth Cir-
cuit precedents actually required the defendant to establish both
actual prejudice and intentional delay by the prosecutor to gain
a tactical advantage. Id. at 485-486 (Garwood, J., dissenting).
On June 14, 1995, the Fifth Circuit granted rehearing en bane to
address the issue.
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reasons. First, even if the legal standard endorsed by
petitioner had been used in this case, petitioner" would
not prevail. That is because, as both the court of
appeals and the Navy Court of Review held, petitioner
has not demonstrated that he suffered actual preju-
dice from the 20-month delay in prosecution. And
under the standard favored by petitioner, a showing of
actual prejudice is a threshold requirement for an
inquiry into the government's reasons for delay.
As the appellate courts below observed, the military
judge's finding of actual prejudice was based essen-
tially on speculation that the passage of time before
charges were filed against petitioner would cause
witnesses' memories to fade. See Pet. App. 8a (citing
id. at 43a). As those courts noted, however, the sole
example offered by the military judge was the
possibility that the delay would make it impossible for
the defense to identify witnesses who might have been
in the hotel room at or around the time of the alleged
rape. As the Navy Court of Review held, that possi-
bility supplied an insufficient basis for a finding of
actual prejudice, for several reasons. First, peti-
tioner himself had never claimed that such witnesses
possessed exculpatory evidence, and indeed had never
claimed that he was unable to identify the persons
present in the room. Pet. App. 44a-45a; id. at 45a
("there is not the slightest indication in the record of
how the individuals would provide exculpatory evi-
dence); see also id. at 8a n.2. Moreover, the NCIS
investigators had themselves made extensive efforts
to locate and interview the persons believed to have
been in the room on the night of the alleged rape, and
there was no basis for speculating that an earlier
preferral of charges would have resulted in the iden-
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10
tification of additional witnesses. Id. at 45a; compare
Lovasco, 431 U.S. at 788 n.6 (noting lower court's
rejection of pre-indictment delay claim where
defendant did not assert that missing witness would
provide exculpatory evidence).
The military judge also based his finding of actual
prejudice on the fact that, based on NCIS's investi-
gation, petitioner had been involuntarily extended on
active duty beginning in September 1993. As the
Navy Court of Review noted, however, that fact is
irrelevant to the actual-prejudice inquiry, which in-
stead focuses on whether pre-indictment delay has
hindered the defendant's ability to present an effec-
tive defense at trial. See Marion, 404 U.S. at 325
(noting that "[n]o actual prejudice to the conduct of
the defense [has been] alleged or proved") (emphasis
added); cf. Lovasco, 431 U.S. at 788-790. As the Navy
Court of Review put the point:
The form of prejudice with which the Court was
concerned in Marion and Lovasco was the ac-
cused's ability to present a defense without being
substantially hampered by a lapse of time. In other
words did the passage of time cause evidence to be
lost, memories of witnesses] to be impaired, or
loss of witnesses altogether.
Pet. App. 41a (brackets added) (quoting United States
v. Reeves, 34 M.J. 1261, 1263 (N.-M. C.M.R. 1992)). 4.
___________________(footnotes)
4 Petitioner's claim would also fail under the standard he
favors because, as the court of appeals held, the government did
demonstrate legitimate reasons for delay "the difficulties [of]
coordinating the location of witnesses throughout the world."
Pet. App. 8a. While the court of appeals did not explicitly
balance the government's interest in investigative thoroughness
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Apart from the fact that petitioner's claim of pre-
indictment delay would fail under either of the
standards utilized by the courts of appeals, this case
is also unfit for review because petitioner's claim is
premature. Petitioner has not yet been tried on the
rape charges. If he is acquitted, his claim that pre-
accusation delay actually prejudiced his ability to
obtain a fair trial will be mooted. If he is convicted,
petitioner will retain the right to challenge the pre-
accusation delay, including, ultimately, by seeking
review in this Court. A post-trial examination of peti-
tioner's claim is preferable to the interlocutory re-
view that petitioner seeks, because it would afford
reviewing courts the opportunity to examine peti-
tioner's claims of actual prejudice based on witnesses'
memory loss in light of the actual proof adduced. at
trial.
2. While petitioner's claim of pre-indictment delay
would fail under either of the standards used by the
courts of appeals, the standard used in this case
(requiring the defendant to prove both actual preju-
dice and an intentional delay to gain tactical advan-
tage) is the more consonant with this Court's
teachings. As this Court has observed, "the
applicable statute of limitations * * * is * * * the
primary guarantee against bringing overly stale
criminal charges." Marion, 404 U.S. at 322 (quoting
United States v. Ewell, 383 U.S. 116, 122 (1966)). The
Due Process Clause therefore has only "a limited
___________________(footnotes)
against the prejudice to petitioner worked by the delay, its
finding that there was "minimal" prejudice (ibid.) implicitly
recognizes that the government's reasons for delay in this case
take precedence over petitioner's desire for a speedier preferral
of charges.
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12
role to play in protecting against oppressive delay."
Lovasco, 431 U.S. at 789.
In defining that limited role, the Court has rejected
the claim that prosecutors are under any duty to file
indictments upon obtaining probable cause:
It requires no extended argument to establish
that prosecutors do not deviate from "fundamental
conceptions of justice" when they defer seeking
indictments until they have probable cause to
believe an accused is guilty; indeed it is unprofes-
sional conduct for a prosecutor to recommend an
indictment on less than probable cause. It should
be equally obvious that prosecutors are under no
duty to file charges as soon as probable cause
exists but before they are satisfied they will be
able to establish the suspect's guilt beyond a
reasonable doubt. To impose such a duty "would
have a deleterious effect both upon the rights of the
accused and upon the ability of society to protect
itself." From the perspective of potential defen-
dants, requiring prosecutions to commence when
probable cause is established is undesirable be-
cause it would increase the likelihood of unwar-
ranted charges being filed, and would add to the
time during which defendants stand accused but
untried.
Lovasco, 431 U.S. at 790-791 (citation and footnotes
omitted). Requiring prosecutors to file charges upon
assembling evidence sufficient to establish guilt
would also "preclude the Government from giving full
consideration to the desirability of not prosecuting in
particular cases" where, for example, a participant is
shown to have played a minor role in a crime or where
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13
mitigating factors exist. Id. at 794. Accordingly, the
Court has held:
Rather than deviating from elementary standards
of "fair play and decency," a prosecutor abides by
them if he refuses to seek indictments until he is
completely satisfied that he should prosecute and
will be able promptly to establish guilt beyond a
reasonable doubt. Penalizing prosecutors who de-
fer action for these reasons would subordinate the
goal of "orderly expedition" to that of "mere
speed." This the Due Process Clause does not re-
quire. We therefore hold that to prosecute a
defendant following investigative delay does not
deprive him of due process, even if his defense
might have been somewhat prejudiced by the lapse
of time.
Id. at 795-796 (citation omitted).
In light of these considerations, the standard for
gauging claims of pre-indictment delay utilized by
most courts of appeals, including the court below, is
correct. That standard obliges the defendant to
establish not simply the existence of prejudice, but
also that the delay that caused that prejudice was
brought about by illegitimate governmental moti-
vations, such as the desire to put the defense at a
tactical disadvantage, and was not based on the
legitimate interest in conducting further investi-
gation. See United States v. Gouveia, 467 U.S. 180,
192 (1984); By contrast, the standard endorsed by
petitioner, which puts the burden of proof on the
government following a mere showing of prejudice, is
at odds with Lovasco's teaching that, in cases
involving pre-indictment delay, prejudice alone does
not establish a due process violation.
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CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
D.H. MYERS
Commander, JAGC, U.S. Navy
ANDREW J. WAGHORN
Lieutenant, JAGC, U.S. Naval Reserve
Appellate Government Counsel
Appellate Government Division,
NAMARA
DREW S. DAYS, III
Solicitor General
AUGUST 1995